Daniels v. Combustion Engineering, Inc.

• Decision Date: 28 November 1978
• Citation: 583 S.W.2d 768
• Parties: Thomas G. DANIELS and wife, Oma P. Daniels v. COMBUSTION ENGINEERING, INC. et al. 583 S.W.2d 768
• Court: Tennessee Court of Appeals

Page 768

583 S.W.2d 768

Thomas G. DANIELS and wife, Oma P. Daniels v. COMBUSTION ENGINEERING, INC. et al.

583 S.W.2d 768

Court of Appeals of Tennessee, Eastern Section.

Nov. 28, 1978.

Certiorari Denied by Supreme Court May 7, 1979.

Paul T. Gillenwater, Ward S. Whelchel, Jr., and H. Douglas Nichol, Knoxville, for appellants.

Fred H. Cagle, Jr., Knoxville, for Johns-Manville Sales Corp.

William D. Vines, III, Knoxville, for Celotex Corp.

Robert R. Campbell, Knoxville, for Owens Corning Fiberglass Corp.

Louis C. Woolf, Knoxville, for Pittsburgh Corning Corp.

OPINION

SANDERS, Judge.

Plaintiffs have appealed from an adverse jury verdict in their products liability suit against a number of manufacturers of asbestos-related insulation materials.

Plaintiff-Appellant, Thomas G. Daniels, was, for a number of years, a professional installer of insulation materials. He was employed primarily by contractors to install insulation in commercial and industrial buildings between 1965 and 1977. The materials with which he worked and installed were asbestos-related insulation materials manufactured and distributed by the Defendants. The Plaintiff contracted an occupational disease known as asbestosis. This develops from breathing asbestos dust over a period of time. Asbestos dust is composed of small sharp fibers which settle into the air sacs in the lungs. This results in inflammation and scarring of the lungs. The respiratory system is affected and, depending on the severity of the case, may range from slight or no disability to death. The Plaintiff's case was considered mild.

The Plaintiff sued the Defendant, Combustion Engineering, Inc., and 16 other Defendants who manufacture and sell asbestos-related insulation materials which had been used by him. Plaintiffs predicated their suit on the theory of products liability. Plaintiff's wife, Oma P. Daniels, also sued for loss of consortium. Plaintiffs contended the insulation products were defective and unreasonably dangerous under 402A, Restatement of Torts, in that they were placed on the market defectively designed; they contained a hazardous material (asbestos); and/or they were defective by reason of inadequate warning of the hazard.

Defendants denied their products were defective and unreasonably dangerous. They denied they directly or proximately caused the Plaintiff's injury. They relied upon the affirmative defenses of the statute of limitations, assumption of the risk and intervening cause. They further contended that the "state of scientific knowledge" was such they did not know, nor could have known, of the hazards to insulation workers prior to 1964.

The case was dismissed as to all but four of the Defendants prior to final determination of the case.

The case was tried before a jury which found the issues in favor of the Defendants. Plaintiffs' motion for a new trial was overruled and they have appealed and assigned error.

Plaintiffs' first assignment of error is: "The Trial Court erred in refusing to allow testimony or reference to the relationship of asbestosis and asbestos exposure to different cancers, cor pulmonale, and mesothelioma."

Prior to the trial the Plaintiffs filed a motion to allow the introduction of testimony regarding association between asbestos and cancer. The Defendants, in turn, filed a motion to exclude such testimony. The Court ruled such testimony should be excluded, and we concur.

The Plaintiffs advance four reasons why the testimony should have been admitted, but they present only two categories one pertains to damages and the other relates to the duty to warn of a known danger beyond that contemplated by the ordinary purchaser. Plaintiffs say the testimony should have been admitted since: (1) "Such evidence would show the mental distress or anguish incident to physical trauma as a compensable item of damages." (2) "The increased risk of cancer in persons who have asbestosis requires they be closely monitored by medical personnel for the remainder of their lifetime and the increased cost of this medical service would be a legitimate item of expense and subject to proof."

If we assume the contention of the Plaintiffs is correct, this would go only to damages. Since the jury resolved the question of liability in favor of the Defendants, it would, at most, be harmless error.

Plaintiffs further say: (3) "Section 402(a), Restatement of Torts, Second, and cases interpreted, indicate that a test regarding the dangerousness of a product is whether the utility of such product outweighs the harm it could cause," and (4) "The fact that defendants' product contained an ingredient which was likely to cause cancer, . . . increases and heightens the duty to warn and would, in effect, have a greater bearing upon the type of warnings that should be given."

This insistence by the Plaintiffs is in contradiction and inconsistent with their argument in support of their fourth assignment of error. There they say, "The plaintiffs did not rely upon the failure of defendants to warn of the dangers of their products in order to establish that the product was defective and unreasonably dangerous."

It is the rule in this jurisdiction that a plaintiff cannot take a position on appeal inconsistent with that taken in the trial of the case. Simpson v. Harper, 21 Tenn.App. 431, 111 S.W.2d 882; Carr v. Wilbanks, 45 Tenn.App. 372, 324 S.W.2d 786.

The Plaintiffs make no contention that he has cancer. He has only a mild case of asbestosis and we therefore see no relevancy between his injuries and cancer. To have admitted the evidence could have served only to prejudice the jury.

Plaintiffs' second assignment is: "The Trial Court erred in refusing to allow the admission of the two depositions of Dr. Kenneth Wallace Smith, deceased, former Medical Director of the defendant, Johns-Manville Sales Corporation."

Prior to the trial of the case the Plaintiffs filed a motion asking to file two depositions of Dr. Smith as evidence. One of the depositions had been taken in January, 1976, in the case of James Roy DeRocco, et al. v. Forty-Eight Insulation, Inc., a Corporation, et al. The case was filed in the Court of Common Pleas of Allegheny County, Pennsylvania. The other deposition was taken in April, 1976, in the case of Louisville Trust Company, Administrator of the Estate of William Virgil Sampson v. Johns-Manville Corporation. This suit was in Louisville, Kentucky. In his motion to admit the depositions the Plaintiff said: "That in DeRocco and Sampson, defendant, Johns-Manville, was given the opportunity to cross-examine the deponent and that the issues in both DeRocco and Sampson are identical to the issues in the case at bar, i. e., what defendant, Johns-Manville, did or did not know relative to the hazards of inhalation of asbestos by the ultimate user of the products. Dr. Kenneth Wallace Smith was employed by defendant, Johns-Manville, from the mid-1940's through 1966 and beginning in 1952 until his termination, was the corporate Medical Director of defendant, Johns-Manville; that in July, 1977, Dr. Kenneth Wallace Smith died.

"Plaintiff submits that the depositions of Dr. Kenneth Wallace Smith are admissible as to Johns-Manville pursuant to 27.03(2) and 26.04(3) of the Tennessee Rules of Civil Procedure and because: (1) the issues in the present case involve the same subject matter and were admissible in the courts of Pennsylvania and Kentucky, respectively; (2) the witness is deceased; (3) the person against whom the deposition is sought to be introduced was given ample opportunity to cross-examine the witness; and (4) exceptional circumstances exist that justice dictates that introduction should be allowed, i. e. Dr. Smith was present during the time critical decisions were made concerning asbestos health hazards to ultimate users and others."

The Plaintiffs rely upon Rule 26.04(3) and 27.03(2), T.R.C.P., as support for their contention that Dr. Smith's deposition was admissible.

We fail to find these rules in point. Neither of them applies to a deposition offered as evidence in a suit filed subsequent to its taking.

Plaintiffs also cite as authority for their contention the case of In Re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429 (1968).

This case is distinguishable from the case at bar in that the testimony in question was give in a former trial of the same case.

Plaintiffs also cite 29 Am.Jur., Evidence, § 738, as authority for their contention.

We fail to see where this section of Am.Jur. lends much support to Plaintiffs' contention, since it stands for the proposition that before testimony of a witness in a former...